COVID-19 Vaccination Attestation Concerns
Master Executive Council (MEC), Grievance Committee
Several members have reached out to AFA regarding management’s recent email titled, “Vaccination Attestation and Masking policy changes.” Some of the questions being asked: Can management ask about our vaccination status? Is it a violation of Health Insurance Portability and Accountability Act (HIPAA) to ask about our vaccination status? What is AFA doing about it?
Can Alaska Airlines (a private employer) ask about employees’ vaccination status?
In a nutshell, yes. Given the contagiousness and deadliness of the COVID-19 virus and its more contagious Delta variant, companies have a legitimate business reason to inquire about an employee’s vaccination status. An employer can ask employees about their vaccination status and/or for proof of vaccination provided it does not make medical inquiries that could prompt discussion about disability-related information, which would violate the Americans with Disabilities Act (ADA).
Employers have a duty of care under the Occupational Safety and Health Act (OSHA) to provide a safe workplace for employees. Under this duty of care an employer can ask employees about their vaccination status and/or for proof of vaccination, subject to the U.S. Equal Employment Opportunity Commission (EEOC) guidelines. If an employee is unable or unwilling to disclose their vaccination status and/or to provide proof of vaccination, the employer is allowed to enforce workplace safety policies such as mask wearing and/or social distancing. Management has the discretion to treat such employees the same way as employees who refuse to be vaccinated on non-medical or non-religious grounds.
Identifying employees who are exempt from mask requirements while in Company buildings with tags or stickers is not a discriminatory practice under EEOC guidelines. Tags or stickers will not be actively distributed to crewmembers because mask requirement remain in place at airports and on aircraft, and there is no exemption to those requirements for crewmembers.
At this point, Alaska Airlines is not requiring proof of vaccination status, but AFA believes it would behoove one to answer honestly since it appears the Company has the legal right to request such proof. If you have concerns about disclosing your status, AFA recommends selecting the opt-out response: “I decline to answer.”
Is it a violation of HIPAA for an employer to ask employees about their vaccination status?
HIPAA applies to covered entities such as healthcare providers and the like. HIPAA does not apply to most (non-healthcare) employers, so it is not a violation for Alaska Airlines to ask its employees about their vaccination status. HIPPA is designed to keep your medical information safe from being shared with third parties. In other words, management can ask you about your vaccination status, but cannot contact your doctor or healthcare provider to ask about your status. Even so, management will safeguard the records of employee attestations by sharing the information only with Human Resources and those deemed necessary to know in limited circumstances and by storing the data in a separate location from personnel records.
What is AFA doing about it?
Management’s requirement for employees to complete a vaccination attestation is not a contractual violation under our Collective Bargaining Agreement, nor does such requirement appear to be a violation of religious freedoms, civil liberties, or any other federal laws. The “requirement” to complete the attestation is more like a strongly encouraged request because management has indicated to AFA that employees who do not fill out the form will not be disciplined at this time, so we do not anticipate any resulting disciplinary grievances. Finally, there is an opt-out response available for any who remain concerned about disclosing their vaccination status: “I decline to answer.”
